Do you have a tenancy or a licence?

Nearly all arrangements in the private rented sector nowadays are ‘tenancies’. Some landlords provide written agreements that are called ‘licence agreements’ because they believe that a ‘licence’ gives tenants fewer rights. The law says that it is the actual arrangement that should be considered to decide whether an agreement is a tenancy or a licence, not the words in the document.

What is a tenancy?

If a property is let to someone who occupies it as a separate dwelling and as their main home it is normally a tenancy. Rent is paid for the right to occupy the property, and not for any services provided by the landlord.

What is a licence?

If there is not a separate dwelling or no rent is paid, then the arrangement might be a ‘licence’. Two common examples are:

when you share a house or flat with the owner and pay rent as a family member, friend or a lodger, but can be asked to move rooms by the owner

hotels or hostels where you could be asked to move rooms or where rooms are only provided on a night-by-night basis.

What types of tenancy are there and what is security of tenure?

‘Security of tenure’ means that you have the right to stay in the accommodation until the landlord has carried out proper legal steps to end the tenancy. How much security of tenure you have depends on the type of tenancy or licence you have:

Private Residential Tenancy: From 1 December 2017 the private residential tenancy (PRT) becomes the most commonly used in Scotland, replacing assured and short assured tenancies. The PRT offers significant security of tenure and can only be ended by a tenant giving notice or if the landlord can prove that they have a ground for possession.

Assured tenancies: This type of tenancy can no longer be issued after 1 December 2017 but existing assured tenancies will remain in place until they come to an end. Assured tenancies provide significant security of tenure. In order to evict you from an assured tenancy, the landlord need not terminate the contractual tenancy. However, the landlord must serve a notice (called an ‘AT6 form’) specifying a ground for eviction. Thereafter, the landlord must take court action and satisfy the court that certain grounds exist; some grounds are mandatory and some discretionary. If the landlord satisfies the court that a mandatory ground exists the court will have to grant an eviction order whereas if the ground is discretionary the court will be required to consider whether or not eviction is reasonable.

Short assured tenancies: This type of tenancy can no longer be issued after 1 December 2017 but existing short assured tenancies will remain in place until they come to an end. Short assured tenancies provide little security of tenure and it is relatively straightforward for the landlord to evict a tenant provided they comply with certain legal steps. The landlord has the right to end the tenancy at the end of the lease provided the landlord has given notice to terminate the tenancy (notice to quit) and notice that the landlord requires possession. However, the landlord will have to take court action in order to evict the tenant.

Accommodation provided by employers: If you live in accommodation provided with your job your accommodation is called ‘tied’ accommodation. You could have one of the tenancies specified above or you could have a service occupancy agreement if you have to live in the accommodation in order to carry out the duties of your employment contract. If you have a service occupancy agreement, your rights will be determined by the contract. Similarly, if you lose your job, your right to reside in the accommodation will end. However, your landlord will have to give you notice to remove you and obtain a court order if you refuse to leave.

Tenancies for farm workers: If you are a farm worker working for your landlord you should look at the previous section on accommodation provided by employers. You could have an assured tenancy, a short assured tenancy, or service occupancy agreement.

Common law tenancies: These types of tenancies are governed by the contract between the parties. You are likely to have a common law tenancy if, for example, you live with your landlord. In order to evict you, your landlord must give you notice to terminate the tenancy and seek a court order to evict you.

Other tenancies: A tenant of a housing association is likely to have a Scottish secure tenancy which provides security of tenure and can only be brought to an end by a court order, provided the landlord has been able to satisfy the court that grounds for eviction exists and, usually, that eviction is reasonable in the circumstances. Some tenancies granted before 1989 by private landlords to tenants who are still living there are Rent Act regulated tenancies and they also have greater security of tenure. If you think you may have one of these tenancies, get advice.

Night-by-night accommodation: If you occupy a room in a hotel, hostel or night shelter on a nightly basis, the owner can ask you to leave your room without a court order.

What is the law about financial arrangements with the landlord?

Tenancy deposits

Landlords letting properties under PRTs, assured and short assured tenancies have to protect tenants’ deposits by placing them with a government approved tenancy deposit scheme and inform the tenants that their deposit is protected. If a landlord fails to protect a deposit, you can apply to the First-Tier Tribunal to order your landlord to pay the deposit into an approved scheme.

Rent increases and changes in rent

The rent at the start of the tenancy will be in the tenancy agreement. With an assured or short assured tenancy, the agreement should also say how it can be increased. If it does not, the rent will stay the same throughout the fixed term of a tenancy. Under a PRT, landlords are only permitted to increase the rent once in any 12-month period.

If the landlord wants to increase the rent, they should serve a notice. If you have a private residential tenancy, the notice period from your landlord must be at least three months. If you think it is too high, you have the right to ask the First-Tier Tribunal to assess the market rent. But be aware that, if the landlord wants to increase the rent under a short assured tenancy, and you do not agree, then the landlord can end the tenancy (see above).

Local authorities have been given discretionary powers to apply to have specific areas designated as Rent Pressure Zones if they think that rents in that area are increasing too much and causing hardship for tenants. If an area is designated as a Rent Pressure Zone, there will be a limit on how much rent can be increased for tenants with private residential tenancies in that area. You can check if you live in a Rent Pressure Zone here.

What is the law about the condition of the property?

What you can do about disrepair as the tenant

The tenancy agreement usually says what repairs the landlord should do. In Scotland, the landlord must ensure that the property meets the Repairing Standard. This says that:

The property must be wind and water tight and in all other respects reasonably fit for people to live in.

The structure and exterior (including drains, gutters and external pipes) must be in a reasonable state of repair and in proper working order.

Installations for supplying water, gas and electricity and for sanitation, space heating and heating water must be in a reasonable state of repair and in proper working order.

Any fixtures, fittings and appliances that the landlord provides under the tenancy must be in a reasonable state of repair and in proper working order.

Any furnishings that the landlord provides under the tenancy must be capable of being used safely for the purpose for which they are designed.

The property must have a satisfactory way of detecting fires and for giving warning in the event of a fire or suspected fire.

The property must have satisfactory provision for giving warning if carbon monoxide is present in a concentration that is hazardous to health.

If the property does not meet the Repairing Standard, you have told the landlord and nothing has been done, you have right to ask the First-Tier Tribunal to require the landlord to do the work.

More generally, you must tell the landlord about any disrepair and the landlord only breaks the terms of the tenancy if they fail to repair it within a reasonable time. If this happens you can ask a court to order the landlord to do the repairs and pay damages. You can sometimes get help to pay for legal advice to do this.

Getting help from the local council about disrepair

The local council has powers to take action against private landlords for bad housing conditions. You can complain to the council who will then send an official from the environmental health department to inspect and take action if needed. They can order the landlord to do the repairs and if necessary take the landlord to court.

Overcrowding

Tenants cannot take action against their landlords for overcrowding, but the local council can assess the accommodation and serve a notice on the landlord to stop the overcrowding. The council will have to follow certain standards which decide if there is overcrowding or not. Note that overcrowding is a ground for possession under the PRT so tenants may be at risk of eviction of they allow the property to become overcrowded.

Houses in Multiple Occupation

If you live in a building where your household has to share facilities such as the bathroom or kitchen with other households, it may be classified as a ‘House in Multiple Occupation’ or ‘HMO’. In these properties, different rules apply and if you have problems with disrepair, overcrowding or other issues like the safety of the premises, you should contact your local council.

What can you do about harassment and illegal eviction?

If a landlord or someone else tries to make you leave, without going through the proper legal stages, that is a criminal offence. Harassment of tenants is also a criminal offence. This includes threats, violence and also action like cutting the water, telephone, gas or electricity supply. If this happens and you contact the police, they should treat harassment or illegal eviction as criminal acts and deal with them. You can also take legal action yourself and you may get help to pay for this.

What happens if you are homeless and are offered private rented accommodation?

Private rented accommodation can be used by local councils to house people who apply for help as homeless. How councils help homeless people and the ‘tests’ they apply are explained here. The local authority has a duty to provide permanent accommodation if the homelessness tests are satisfied: only a council or housing association letting, or a private residential tenancy in the private rented sector would normally meet this requirement.

If you refuse a final offer of permanent accommodation, the council will probably have no duty to continue to accommodate you. You have the right to accept the offer and then to try to get a review of the council’s decision: this is probably the safest thing to do.